High court rejects term limit appeal

Robert Salladay, EXAMINER CAPITOL BUREAU

Published 4:00 am, Tuesday, October 14, 1997

1997-10-14 04:00:00 PDT CALIFORNIA, UNITED STATES -- The U.S. Supreme Court rejected an appeal Tuesday by California to resurrect the state's strict term limits law, but left the door open for its consideration later.

As expected, the high court turned away arguments by Secretary of State Bill Jones and Attorney General Dan Lungren, who asked the justices to uphold the landmark 1990 initiative barring former legislators from ever seeking the same office.

The Supreme Court acted Tuesday only on an appeal that had been filed last month - well before a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco struck down the law last week. The appeals court said its 2-1 ruling would take effect Oct. 28 unless the high court acted.

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"We are not surprised by the U.S. Supreme Court's denial of our pre-petition," Jones said Tuesday. "We will go forward with our full petition."

The pre-petition was an attempt to have the Supreme Court take the case before a decision was made by the 9th Circuit court.

Jones and Lungren are free to file a new appeal and ask the justices to postpone the effect of the 9th Circuit court's ruling while the new appeal is considered.

Jones said he will file the petition sometime early next week. His office express-mailed the 9th Circuit's decision to the Supreme Court last week in hopes of getting it included in the court's Tuesday decision.

"Immediate resolution by this court is required," Jones' original appeal said. "Now is the last clear chance this court has to take the case in time to assure the definitive resolution necessary to allow California to conduct an orderly election in 1998."

The Supreme Court's decision comes a week after the 9th Circuit said California voters were not sufficiently informed of the stringent nature of the initiative.

Fifty-two percent of California voters approved the hotly debated term-limits initiative in 1990. Proposition 140 limits Assembly members to three two-year terms and state senators to two four-year terms.

Now, most of California's veteran lawmakers have been swept away. Twenty-six lawmakers, including Assembly Speaker Cruz Bustamante, D-Fresno, and Senate President pro tem Bill Lockyer, D-Hayward, are nearing the end of their terms.

The case started when former Berkeley Assemblyman Tom Bates sued the secretary of state to get his old job back.

If the Supreme Court does not overturn the 9th Circuit before Feb. 4, when candidates must file to run for office in 1998, the termed-out lawmakers presumably could run again. Bustamante said he would run again, but Lockyer said he wanted to wait until the issue is finally decided.

Appeals court Judge Stephen Reinhardt ruled that Prop. 140 did not clearly state that a termed-out legislator would be barred for life from a certain office. Rather than rule on whether state voters have a right to impose term limits on their legislators, the federal court focused on whether voters' rights were violated by an unclear initiative.

"The Constitution requires us to invalidate an initiative if it fails to provide adequate notice to the voters that it would severely burden the people's fundamental rights," Reinhardt wrote.

Some legal analysts were puzzled by this reasoning. The fact that voters were installing a lifetime ban was a key feature of the debate surrounding the initiative, and it was specifically mentioned by the opposition 11 times in the ballot pamphlet sent to voters before the election.

The 9th Circuit did not address an earlier decision by U.S. District Judge Claudia Wilken, who ruled against term limits based on constitutional grounds. Wilken said voters' First Amendment right to pick the candidate of their choice was hampered.

But Reinhardt, citing former Supreme Court Justice Lewis F. Powell, said "important constitutional issues should not be decided unnecessarily where narrower grounds exist." That reasoning was interpreted as a way to avoid Supreme Court scrutiny by focusing on a minor issue, like whether the initiative was clearly worded or not.&lt;